The Unconstitutionality of ObamaCare

According to a recent New York Slimes Piece, several states across the nation are passing laws and resolutions outlawing the proposed government mandate requiring all citizens to have health insurance. The Slimes piece, of course, takes a swipe at the efforts as mostly symbolic and posing little chance of success, but in reality, these laws could set the stage for a major battle over state sovereignty and state’s rights. It is likely that the state laws will not be upheld (the states cannot regulate the Federal Government). However, there are other constitutional questions to consider.

In an op-ed in the Wall Street Journal, David Rivkin and Lee Casey argue that the insurance mandate does not pass constitutional muster. The federal government is subject to enumerated powers, and can only perform functions under those powers. Yet the over-broadly interpreted commerce clause, through which the federal government has advanced its power in the last century, does not apply here according to Rivkin and Casey. Forcing individuals to have insurance by the act of them being residents of the United States hardly constitutes commerce, and if that mandate were passed, where could the government stop? It would be no stretch to argue that the Federal Government has the power to force all Americans to buy a car, or to own a home, or to buy a rubber hose (if the Government ever became beholden to the rubber hose industry). It is then at least plausible, I think, that the Supreme Court would overturn the mandate based on the commerce clause argument.

Since the Democrats do see the fallacy of using the commerce clause, they are also utilizing Congress’s power to tax as a means of trying to slip the mandate through. Yet the power to tax in this case is a taxation against behavior, not against an overt act of commerce as taxes are currently levied. As Rivkin and Casey point out, if this passes as a tax, then Congress can tax you for not eating your veggies.

Now, the Supreme Court is completely unpredictable (thank you, Justice Kennedy) and may indeed consider the mandate Constitutional. But in reality, by any plain reading of the Constitution, it is not (lawyers, please validate me or correct me if I am wrong). Whether the justification is States Rights, the Commerce Clause, or the Power to Tax, the Federal Government attempts to exceed its authority with this act, putting yet another major limit on our freedoms, and setting the precedent for a further erosion of freedoms in the future.

I think the states can regulate the federal government by means of a constitutional convention. They have the authority to make any change they want respecting the limitations of authority of all three branches. They could even destroy the two-party structure of Congressional rules, procedures and committee chairmanships. The only authority required to make it so lies with States and no other.

@IOpian –
I think a Constitutional convention is a bad idea. When you have a C.C., you don’t just change a portion here or there, you throw out the whole constitution and start over. This regime would welcome such a convention.

I’m willing to bet that a good number of our Representatives haven’t even read the Constitution and have no idea what the “commerce clause” is; various Supreme Courts in the past have surely missed the original intent of its limits.

Yet, here the Right goes again, talking about those pesky “enumerated powers” and those “negative rights” found in the Constitution… can’t they see that our Dear Leader the Most High and Beneficent Barack Hussein Obama (mmm…mmm…mm…) is looking to focus on the “positive rights” of government intervention on behalf of our weak and feeble states of Nature? How can we persevere in this life without the strong hand of a benevolent government guiding us to right and true behavior? They are only in this to demonstrate the kindness of their better angels to us, the fawning masses.